Samenvatting ALLE gastcolleges: Buitenlandse Rechtsstelsels
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Course
Buitenlandse Rechtsstelsels 2e Bachelor
Institution
Universiteit Antwerpen (UA)
Het is een samenvatting met de letterlijke verwoording die tijdens de gastcolleges plaatsvond. Meer bepaald wordt dit besproken:
-Introduction on Chinese Law
-Laws in the East African Community
-Nederlands recht
-Themacollege Patricia Williams
1. Taxonomy: The Chinese Legal system in the legal system of the world........................................................ 2
1.1. Legal systems ............................................................................................................................................... 2
1.2. What is Chinese Law? .................................................................................................................................. 2
2. Sources of (state)law in China ..................................................................................................................... 3
2.1. Chinese legal system .................................................................................................................................... 3
2.2. Hierarchy of laws ......................................................................................................................................... 4
2.3. Interpretation of law.................................................................................................................................... 5
3. Piecing together the (new) Chinese civil code ............................................................................................. 6
3.1. Arranging the pieces .................................................................................................................................... 6
3.2. Piecing together the existing laws ............................................................................................................... 6
3.3. Recent developments................................................................................................................................... 8
1. Taxonomy: The Chinese Legal system in the legal system of the world
1.1. Legal systems
• Left: map of legal systems of the world
• Europe: civil law
o Napoleonic law, Germanic law, Nordic law, Chilian law, mixed form of indigenous
• Red: common law lands
• China is light blue: there is no decision made, because it is a mixed system
o Civil law and customary law
• Right: China is civil law + political law + socialist law + traditional law (1970)
• Fall of Berlin law -> left the socialist law
• Many elements in Chinese law are Chinese characteristics -> it’s a socialist element
o China has the function of education
o Courts: not only diced disputes, but actually educate the parties -> different
functional order
1.2. What is Chinese Law?
• Mixed jurisdiction:
o Confucian tradition
o Civil Law elements
o Socialist legacy
• Codified since Tang Dynasty (618-907)
o Focusing on criminal law and state organisation law
• “Modern” legislation started at the end of Qing Dynasty (1644-1911)
o Expected from China to change the legal system, due to the fact that there were
unequal treaties
o Modernize the legal system: looking from Europe
• First codification of Chinese civil law in Republic of China (1912-)
o Still applicable in Taiwan
o Comparative law: 2 options
§ Comparative law from historical perspective
§ Comparing existing law: looking at French law, Belgian law…
• Socialist influence after founding of People’s Republic of China (1949)
o Still applicable in Taiwan
o Influence of the socialist law, because of the influence of the Soviet-Union
2
,Ivana Raspudic 2021-2022
• “Jigsaw puzzle”-legislation after “Reform and Opening-up” policy was introduced in
1978, gaining speed (and quality) in 1999 with the promulgation of the Contract Law
(followed by the Property Law in 2007, Tort Law 2009...)
o Family law with equal rights between men and women
o Criminal code
o For contracts and property laws, there was nothing -> necessary to codify this
o Horizontal matter
o investors to come to China-> companies are independent legal persons
o Jigsaw puzzle: China promulgated the laws that they needed at the moment
§ No need for natural persons to contracts-> later on it was possible
(1986)
§ No political influence
§ Very short, not detailed, only 10 pages
o 1999: the quality of legislation got better
o Property Law in 2007: what is property?
o Tort Law 2009: non contractual obligations
• New round of codification since 2017
• May 28, 2020: Promulgation of a Civil Code, effective from January 1, 2021
• China has a young legal system, at the same time it is also quite modern (because of the
comparative work of the legislator)
o The law in China is not the problem, it is very problem
o The problem is the court system: judges are not independent, not well paid,
influenced by the parties. They can get dismissed at any time.
2. Sources of (state)law in China
2.1. Chinese legal system
• NPC is only in cession once a year
o Not a working parliament
• Most of the law-making is in the
standing Committee of the NPC
o °Laws
• Constitution China ó Constitution
in other countries: rights in the
Constitution are not enforceable
o Courts are not allowed to site the construction -> not base your judgement on
the constitution
o Constitution is a political statement-> educational
o You cannot claim any rights from the constitution
• Possibility of law making on the local level
• People’s Congress of autonomous regions:
o Family law
o In autonomous regions you have minorities -> 15 nationalities-> adaptions
concerning family law
• People’s Congresses of provinces and municipalities with a Special Economic Zone
o Before having economic law -> try capitalise elements in socialist economy and
see if it works for us
o Capitalist instruments-> expand it to other arias to see if it works
3
, Ivana Raspudic 2021-2022
• National: State Council and under that there are Ministries and Departments
• Local: Local People’s Governments of “districted cities and autonomous prefectures”
o They have the authority to promulgate the rules
2.2. Hierarchy of laws
• Constitution
o Not applicable by courts
• Laws
o Hierarchy of laws is not
stipulated in the constitution
itself but in the legislation law
(more detailed regulation)
• Administrative Regulations
• Local Regulations und Rules
• In the legislation law it is stipulated that the Special Economic Zones may have specific
regulations and provisions which supersede laws, administrative regulations or local
regulations as far as they are legally “provisions for adaption”
o They can interduce new instruments within the Special Economic Zones, which is
not allowed on the national level
• There is no constitutional court
• it is up to the state and the party itself to decide which law is precedent
• There is no separation of power, but a unity of power (it is not wanted)
• NPC can influence anything
4
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